Thursday, 15 September 2011

Battle of Britain Day - a look back over 71 years

Sunday 15th September 1940 is a major day in British history but, over the 71 intervening years, it has generally passed with minimal comment.  This was the decisive day which marked the culmination of the Battle of Britain.  The battle was fought mainly over the skies of south-east England.  Young pilots of many nations were locked in mortal combat in a desperate fight to maintain supremacy over Britain's air space.  Supporting the pilots was the structure of detection, command and control developed by Fighter Command's leader - Air Chief Marshal Sir Hugh Dowding (1882-1970).  It always seems a matter of regret that he was not honoured by promotion to Marshal of the Royal Air Force - the highest rank in the RAF.  It is probably impossible
to say with any degree of precision what would have become of the United Kingdom had this battle been lost.  On 18th June 1940, Winston Churchill referred to the "long continuity of our institutions" depending on the outcome of what he named "the Battle of Britain."  By this he clearly meant our constitution, developed incrementally over the centuries.  He meant our Parliament and system of law.  As Churchill foresaw, success in the battle prevented a "new Dark Age."

It was to be a further 5 years before the Second World War drew to its close.  After the war, the UK played a major role in several international developments.  The United Nations was set up by Charter of 26th June 1945.  The Universal Declaration of Human Rights was adopted by the United Nations in December 1948.   The Council of Europe was created in 1949 and a European Convention on Human Rights adopted in 1950 by the Council of Europe Member States.  It came into force on 3rd September 1953.   Under the convention, a very extensive body of law has been developed by the European Court of Human Rights (based at Strasbourg).  The UK Parliament enacted the Human Rights Act 1998 with a view to giving greater force within the UK to convention rights.  A key aim of the 1998 Act was to enable convention rights to be argued and decided upon in UK courts and thereby reduce the number of times cases went to Strasbourg.  Now, the UK government appears to be set on a course of altering Britain's relationship with the European Court though  it is clear that the UK will remain within the Convention.  The Convention has brought about numerous and significant changes to our law.  Many of these have been beneficial.  Some are controversial and some are detested by British politicians and there is a tendency in parts of the media to vilify the Convention and the 1998 Act.

Immensely important political and economic development came with the creation, in 1952, of the European Coal and Steel Community (ECSC) and, in 1957, the Treaty of Rome set up the "European Economic Community" (or "Common Market").  This developed into the complex European Union of today - (History of the EU).   Whilst the possibility of joining the EEC seemed very remote in 1963 - when President Charles de Gaulle famously said "NON" to Britain's application to join - the UK eventually acceeded from 1st January 1973.  Even at the time of joining, few British lawyers realised the immense impact it would have on our law.  Lord Denning MR was undoubtedly among the more perceptive when he said:

 " ... when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers."  HP Bulmer Ltd v J Bollinger SA [1974] Ch401 at 418.

Many in the UK continue to question the value of continuing UK membership particularly in the light of the serious and seemingly intractable financial problems existing within the so-called "Eurozone."  See also Daily Mail 15th September 2011 - "Britain draws up survival plans for life after the euro ...

Even in the early 1960s, a typical law degree in an English University would hardly have touched upon anything "European."  Despite the fact the much of the "common law" ssytem had been exported to developing nations, our "English law" was very insular: a curious mix of judicial creation and Acts of Parliament.  It owed little, if anything, to the legal systems of European nations.  An understanding of all things European is now vital for the modern lawyer since either "EU law" or "Human Rights law" impacts on everything.

Those who fought valiantly in 1940 could hardly have foreseen the way that things would develop.  Nevertheless, they fought for a free nation and the basic freedoms which British people have come to treasure and, in particular, the rule of law administered impartially by independent judges.  We owe them an immense debt.  The European institutions which developed in the wake of World War 2 were created with the basic aim of preventing a future war and the human rights abuses which arose.  However, those institutions are now being questioned and it is not easy to predict what the future may hold though a UK rather more distant from Europe seems a possibility. 

There is much going in the world of law - to that I will turn my attention later today.

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